Wright v. Colvin et al

Filing 16

MEMORANDUM (Order to follow as separate docket entry) For the reasons discussed above, we find no basis for remand in the errors claimed by Plaintiff. Therefore, Plaintiffs appeal of the Acting Commissioners denial of benefits (Doc. 1) is denied. An appropriate Order is filed simultaneously with this Memorandum. re 1 Complaint filed by Dale Lee Wright Signed by Honorable Richard P. Conaboy on 7/27/15. (cc)

UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
DALE LEE WRIGHT,

:
:CIVIL ACTION NO. 3:15-CV-102
Plaintiff,
:
:(JUDGE CONABOY)
v.
:
:
CAROLYN W. COLVIN,
:
Acting Commissioner of
:
Social Security,
:
:
Defendant.
:
___________________________________________________________________
MEMORANDUM
Here we consider Plaintiff’s appeal from the Commissioner’s
denial of Disability Insurance Benefits (“DIB”) under Title II of
the Social Security Act.

(Doc. 1.)

Plaintiff originally alleged

disability due to epilepsy, chronic depression, and arthritis.
160.)

(R.

In his application, Plaintiff identified his onset date as

March 27, 2007, but he amended the date to January 1, 2013.
11 at 2.)

(Doc.

The Administrative Law Judge (“ALJ”) who evaluated the

claim concluded that Plaintiff’s severe impairments of epilepsy,
obstructive sleep apnea, major depressive disorder, carpal tunnel
syndrome and degenerative joint disease secondary to osteoarthritis
did not alone or in combination meet or equal the listings.
69.)

(R.

The ALJ found that Plaintiff had the residual function

capacity (“RFC”) for light work with certain nonexertional
limitations and that he was capable of performing jobs that existed
in significant numbers in the national economy.

(R. 71-77.)

The

ALJ therefore found Plaintiff was not disabled under the Act
through December 31, 2013, the date last insured.

(R. 78.)

With this action, Plaintiff asserts that the decision of the
Social Security Administration should be reversed and benefits
awarded or, alternatively, that the case be remanded for further
administrative proceedings.

(Doc. 11 at 23-24.)

He identifies the

following errors: 1) the ALJ erred at step three in determining
that Plaintiff’s major depressive disorder does not meet medical
listing 12.04; 2) the Commissioner erred as a matter of law in
failing to provide any reason for rejecting the opinion of Stanley
E. Schneider, Ed.D.;1 3) the Commissioner failed to sustain her
burden of establishing there is other work in the national economy
Plaintiff could perform; and 4) the ALJ’s credibility finding is
not based on substantial evidence.

(Doc. 11 at 2.)

After careful consideration of the administrative record and
the parties’ filings, we conclude Plaintiff’s appeal is properly
denied.
I. Background
A.

Procedural Background
On July 25, 2013, Plaintiff protectively filed an application

for DIB.

(R. 67.)

As noted above, Plaintiff alleges disability

beginning on January 1, 2013. (Doc. 11 at 2.)

1

In his application

Plaintiff incorrectly identifies Dr. Schneider as a
psychiatrist. (Doc. 11 at 2.)
2

for benefits, Plaintiff claimed his ability to work was limited
because of epilepsy, chronic depression, and arthritis.
The claim was initially denied on December 3, 2013.

(R. 160.)

(R. 11.)

Plaintiff filed a request for a review before an ALJ on January 14,
2014.

(Id.)

On May 8, 2014, Plaintiff appeared and testified at a

hearing in Harrisburg before ALJ Daniel Myers.

(R. 11-49.)

Plaintiff appeared with his attorney, Steven Serra.

(R. 11.)

Vocation expert (VE) Michael Kibler also testified.

(Id.)

The ALJ

issued his unfavorable decision on June 5, 2014, finding that
Plaintiff was not disabled under the Social Security Act though
December 31, 2013, the date last insured.

(R. 78.)

On August 1,

2014, Plaintiff requested a review with the Appeal’s Council.

(R.

9-10.)
The Appeals Council issued its decision on November 12, 2014.
(R. 1-8.)

The Appeals Council adopted the ALJ’s “statements

regarding the pertinent provisions of the Social Security Act,
Social Security Administration Regulations, Social Security Rulings
and Acquiescence Rulings, the issues in the case, and the
evidentiary facts, as applicable.”

(R. 5.)

The Appeals Council

also adopted the ALJ’s “findings or conclusions regarding whether
the claimant is ‘disabled’.

The Council considered the claimant’s

statements concerning the subjective complaints (Social Security
Ruling 96-7p) and the [sic] adopts the Administrative Law Judge’s
conclusions in that regard.”

(Id.)

3

The Council agreed with the

ALJ’s findings under steps one through five of the sequential
evaluation, but did not agree that the claimant’s date last insured
was December 31, 2013.

(R. 5.)

Rather, the Appeals Council

determined that Plaintiff met the insured status requirements
through December 31, 2016.

(Id.)

The Appeals Council then

determined that the remainder of the ALJ’s findings applied through
June 5, 2014 (the date of the ALJ decision) since the record did
not indicate any significant change in Plaintiff’s impairments from
January 1, 2013, to June 5, 2014.

(Id.)

Accordingly, the Appeals

Council concluded “the claimant has not been under a ‘disability,’
as defined in the Social Security Act, at any time from January 1,
2013, the alleged onset date, through June 5, 2014, the date of the
Administrative Law Judge’s decision.

(R. 5.)

On January 16, 2015, Plaintiff filed his action in this Court
appealing the Acting Commissioner’s decision.

(Doc. 1.)

Defendant

filed her answer and the Social Security Administration transcript
on March 27, 2015.

(Docs. 9, 10.)

brief on May 11, 2015.

(Doc. 11.)

Plaintiff filed his supporting
Defendant filed her opposition

brief on June 11, 2015 (Doc. 12), and Plaintiff filed his reply
brief on June 30, 2015 (Doc. 15).

Therefore, this matter is fully

briefed and ripe for disposition.
B.

Factual Background
Plaintiff was born on October 3, 1962.

has a at least a high school education.

4

(R. 77.)

(Id.)

Plaintiff

In the August 14,

2013, Disability Report, he reported that he stopped working on
December 7, 2012, because his temporary contract position ended.
(R. 160.)

He also indicated in the report that he believed his

conditions became severe enough to keep him from working on August
6, 2007.

(Id.)

The report indicates Plaintiff had worked as an

administrative assistant, call center customer care specialist,
customer service counselor, customer service representative, and
group administrator sales support.

(R. 162.)

Regarding Plaintiff’s background, Defendant notes that
Plaintiff held several long-term jobs, reported he received several
promotions in customer service, and recently completed a medical
coding/billing certification with honors.
17, 249, 299).)

(Doc. 12 at 6 (citing R.

Defendant also notes that Plaintiff received

unemployment benefits after being laid off in 2009, exhausted those
benefits and submitted a previous application for DIB which was
denied without appeal.

(Id. (citing R. 51, 54, 126, 157, 327).)

Defendant adds that the application under consideration here was
filed when a temporary employment position ended.

(Id. (citing R.

126, 156, 298).)
1.

Impairment Evidence
We review evidence related to the impairments alleged by

Plaintiff and discussed by the ALJ, focusing on evidence pertinent
to the relevant time period--Plaintiff’s alleged onset date of
January 1, 2013, through June 5, 2014, the date of the ALJ’s

5

decision.
a.

Physical Impairment Evidence
On October 20, 2013, Plaintiff underwent a consultative

examination by Thomas McLaughlin, M.D.

(R. 278-94.)

Dr.

McLaughlin noted that Plaintiff presented for a disability
evaluation with allegations of epilepsy, obstructive sleep apnea,
degenerative joint disease and carpal tunnel syndrome.

(R. 278.)

Dr. McLaughlin recorded the following history:
The claimant has a history of epilepsy
diagnosed at the age of nineteen. His last
seizure was in April 2013. He generally has
three to four seizures per year and usually
has an aura before the seizures. When he has
a seizure he has tonic clonic movements of
the extremities as well as tongue biting, lip
biting and incontinence of urine but no
incontinence of bowel. The claimant is
better controlled on medications of carbitol.
His last ER visit for epilepsy was in May of
2012. He does not drive.
He also has a history of obstructive
sleep apnea. He had used CPAP in the past
which helped however he is lacking insurance
and is not using any intervention at this
time for the obstructive sleep apnea.
He also has complaints consistent with
degenerative joint disease involving the
fingers, the knees, the back and the neck.
He has no radicular symptoms. He has
intermittent achy pain in various joints
without swelling, stiffness, locking up or
giving way. He is on no medications for
this.
He also has a history of bilateral
carpal tunnel syndrome with pain in his
fingers and paresthesia as well as his hands
“locking up”. He has not had surgery and has
6

not had EMG evaluation.
(R. 278-79.)
Surgically, Plaintiff had a laparoscopic cholecystectomy in
2013, and a frontal lobectomy for congenital brain cyst in May of
2007.

(R. 279.)

The Review of Systems was unremarkable except as

recorded in the history of present illnesses.

(R. 280.)

On physical examination, Plaintiff appeared of normal
nutritional status, he had a normal gait, was able to change
positions without difficulty, appeared comfortable, had good
understanding and knowledge, and was cooperative.

(R. 280.)

No problems were noted on examination of the head, neck, chest,
cardiac, abdomen and extremities.

(R. 281.)

Musculoskeletal

examination showed the following: no tenderness over the cervical
spine; shoulders, elbows and wrists were nontender with no redness,
swelling, warmth or nodules; examination of the hands revealed no
tenderness, redness, warmth, swelling, nodules, or atrophy, Tinel’s
and Phalen’s were positive bilaterally, and Plaintiff was able to
make a fist bilaterally, open a jar, open a door, pick up coins,
write, and use the hands to button and unbutton without problem;
examination of the knees and hips revealed no tenderness or other
problems; examination of the dorsolumbar spine revealed no
problems, including no evidence of muscle weakness or atrophy.
281-82.)
Neurologically, Plaintiff’s mental status was alert and

7

(R.

oriented and his affect appropriate.

(R. 282.)

Plaintiff could

walk on his heels and toes, walk heel-to-toe and squat without
difficulty.

(Id.)

Dr. McLaughlin noted no irregularities with his

neurologic examination.

(Id.)

After his examination and review of Pinnacle Family Health
records from 2001 and a Friends Hospital Discharge Summary from
2012, Dr. McLaughlin assessed Plaintiff to have epilepsy,
obstructive sleep apnea, degenerative joint disease secondary to
osteoarthritis, carpal tunnel syndrome bilaterally, and tobacco
abuse.

(R. 282-83.)

Dr. McLaughlin also completed a Medical

Source Statement to Do Work Related Activities (Physical) (R. 28994) which will be reviewed below in the Opinion Evidence section of
this Memorandum.
On February 19, 2014, Plaintiff saw neurologist Jayant
Acharya, M.D., at Milton S. Hershey Medical Center.
Acharya had last seen Plaintiff in 2010.

(Id.)

(R. 343.)

Dr.

Dr. Acharya

reported that Plaintiff had developed seizures in 1998, was
diagnosed with right frontal lobe epilepsy, had a frontal lobectomy
in March 2007, and was seizure free (although he continued to have
auras) until 2008 when he developed nocturnal seizures.

(Id.)

Dr.

Acharya noted that Plaintiff was directed to start Zonegran when he
was seen in 2010 but Plaintiff only took the drug for a month
reportedly because it was too expensive.

(Id.)

Plaintiff had been

seizure free from May 2012 (with occasional auras) until April

8

2013.

(Id.)

Plaintiff told Dr. Acharya that the auras, which had

occurred twice in the preceding ten months, consisted of right arm
tingling for a few minutes to one hour and he is disoriented for a
few minutes.

(Id.)

He also reported that he had a petit seizure

in April 2013 which consisted of mild shaking in his sleep and one
grand mal seizure over the preceding year (January 2014) which he
associated with colonoscopy preparation.

(Id.)

On physical

examination, Plaintiff appeared well-built, well-nourished, and
well groomed, he was alert and oriented to time, place and person,
his attention span and concentration were normal, his immediate
recall and recent and remote memory were normal, and all other
aspects of his examination were normal.

(R. 344-45.)

Dr.

Acharya’s impression was that Plaintiff had partial epilepsy,
temporal versus frontal origin, and that he was likely symptomatic
due to a frontal cyst diagnosed before the frontal lobectomy.
346.)

Dr. Acharya noted that further work-up was needed.

(R.

(Id.)

He advised Plaintiff about seizure precautions, including avoiding
significant heights, heavy machinery, swimming alone and that
showers are preferable to tub bathing.
b.

(Id.)

Mental Impairment Evidence
Plaintiff was voluntarily admitted to Friends Hospital in

Philadelphia, Pennsylvania, on September 4, 2012.
was discharged on September 13, 2012.
indicates that Plaintiff
9

(Id.)

(R. 266.)

He

The Discharge Summary

presented with chief complaints of agitation
and depression. He reported two months of
worsening depression after loss of his job,
breakup with partner, family conflict,
financial problems, and homelessness for the
last two weeks. He had severe depression
with hypersomnolence, poor appetite, low
energy, poor concentration, and thoughts of
being a “failure.” He said that he had
suicidal ideation with a plan to overdose on
Trazadone. He had homicidal ideation toward
his sister when she was verbally abusive to
him or to her partner in front of him. The
patient attributed his homelessness to having
to leave the abusive environment in his
sister’s home.
Past Psychiatric History: The patient
was diagnosed with depression for the first
time at the age of 23. He attended
psychotherapy for four years. His primary
care doctor had prescribed multiple
antidepressant medications. He was also
treated for epilepsy. He denied a history of
suicide attempts. He had no unmanageability
or loss of control due to mood-altering
chemicals, and his drug urine screen was
negative.
(R. 266.)

The Discharge Summary noted that Plaintiff “gradually

began to improve in the therapeutic milieu. . . . He tolerated the
medication well, and at discharge, he was behaviorally stable for
stepdown and opted for a recovery house environment.”

(Id.)

At discharge, Plaintiff was alert and oriented, and his insight and
judgment were improved.

(R. 267.)

He was diagnosed with major

depressive disorder with a GAF on admission of 25 and on discharge
59.

(Id.)

Plaintiff’s prognosis was reported to be good, and he

was referred to Montgomery Mental Health, in Norristown,
Pennsylvania.

(Id.)
10

On November 13, 2013, Stanley E. Schneider, Ed.D., conducted a
Clinical Psychological Disability Evaluation.

(R. 297.)

Dr.

Schneider noted that Plaintiff reported he was applying for
disability after he applied in 2010 and had been denied.

(R. 298.)

When asked if he could do any kind of work, Plaintiff said he would
like to.

(Id.)

When asked about his alleged chronic depression,

Plaintiff reported that
he goes through periods when he feels okay
and then something happens . . . “nothing is
right . . . I will ruminate up to the point
where I can’t function . . . I feel lost,
sad, hopeless. I sleep a lot . . . I look
for work, I go on the internet and apply and
I keep getting rejection notices . . . I had
been in and out of treatment since I was 23
years old . . . I am 51 and I am going no
where.”
(R. 299.)

Plaintiff reported to Dr. Schneider that he had daily

crying spells, felt guilty, worthless and had a sense of
helplessness and hopelessness regarding his future.

(Id.)

He

also reported that he had worked at Highmark in customer service
for nine years and left there in 2009.

(R. 299-300.)

He had been

fired three times in the preceding five years from various customer
service jobs either because of his employer’s claimed inefficiency
for spending too much time addressing customers’ concerns or being
arrogant.

(R. 300.)

Plaintiff reported that he got along well

with coworkers but had a problem relating to authority figures and
supervisors unless he could control them.

(Id.)

At the time of

the evaluation, Plaintiff was living with his ex-partner who
11

supported him, and he was also receiving food stamps and medical
assistance.

(Id.)

Plaintiff said he had received unemployment

benefits until July 2013.

(Id.)

Regarding Plaintiff’s ability to interact, Dr. Schneider noted
that Plaintiff had a lot of underlying anger, and his irritability
was “tapped into quite readily” which Dr. Schneider thought may
have been related to his “frustration and sense of failing and
feeling lost.”

(Id.)

Dr. Schneider stated that there was no

memory impairment at all and no evidence of any perceptual
disturbances.

(Id.)

Plaintiff described his mood as sad and occasionally suicidal
when he was left home alone.

(Id.)

Dr. Schneider found

Plaintiff’s affect to be appropriate to his mood which reflected
“somewhat of an agitated depression.”

(Id.)

Dr. Schneider noted

that cognitively Plaintiff was a bright man, his attention and
concentration were adequate, there was no evidence of an impulse
control problem, and test judgment and insight were good.
301.)

(R.

He further noted that Plaintiff had no reported or

identified impairments, restrictions or limitations in his
activities of daily living, his concentration was fine, his
persistence varied depending on his mood, and Plaintiff identified
his pace as slow.

(R. 302.)

Dr. Schneider diagnosed “[m]ajor depressive disorder,
recurrent, without psychotic features.”

12

(R. 301.)

He concluded

that Plaintiff’s prognosis was poor emotionally.

(R. 302.)

Dr.

Schneider completed a Medical Source Statement to Do Work Related
Activities (Mental) (R. 303-05) which will be reviewed below in the
Opinion Evidence section of this Memorandum.
Plaintiff sought treatment at Riverside Associates in
Harrisburg, Pennsylvania, from January 14, 2014, through April 29,
2014.

(R. 320.)

The records from this provider consist of session

dates (R. 315, 320) and two Treatment Plan & Service
Recommendations authored by Hilary Spease, a licensed clinical
social worker, which were approved and reviewed by Wayne D.
Schmoyer, Ed.D. (R. 316-19, 322-24).

The session schedules show

that Plaintiff had twenty-four sessions during this time period.
(R. 315, 320.)

The first Treatment Plan & Service Recommendations

is dated February 12, 2014.

(R. 321.)

Plaintiff’s problems were

identified as depression, anxiety, relationship issues, and
employment.

(Id.)

Relative to employment, Plaintiff reported that

he had problems with his memory which Ms. Spease encouraged him to
talk about with his neurologist.

(Id.)

psychotropic medications at the time.
goals were established:

He was not taking any

(R. 322.)

The following

stabilization of mood; decrease overall

anxiety level and increase coping skills; improve interpersonal
relationship skills; and regarding employment, increase
independence.

(R. 323.)

Under the goal of increasing

independence, Ms. Spease noted that Plaintiff would talk to his

13

neurologist about his ability to work, and, based on the
recommendation of the neurologist, Plaintiff would either apply for
a job or apply for disability.

(Id.)

On March 31, 2014, Ms.

Spease noted that Plaintiff’s problems previously identified
remained: regarding depression, he had a psychiatric evaluation the
previous week and started on an antidepressant; regarding anxiety,
Plaintiff reported he had ben worrying about finances; regarding
relationship issues, Plaintiff reported regression with his
partner’s drinking issues; and regarding employment, Plaintiff said
he was waiting for a Social Security hearing.

(R. 316-17.)

The

March 31st Plan also indicates that Ms. Spease again encouraged
Plaintiff to talk about his reported memory problems with his
neurologist.

(Id.)

Goals were similar to those established in

February, including the employment-related goal of Plaintiff
talking with his neurologist about his ability to work.

(R. 317-

18.)
2.

Opinion Evidence
Dr. McLaughlin completed a Medical Source Statement of Ability

to Do Work Related Activities (Physical) on November 4, 2013–-the
date of his physical examination of Plaintiff.

(R. 289-94.)

He

identified the following abilities and limitations: Plaintiff could
continuously lift and carry up to twenty pounds, frequently lift up
to fifty pounds, and occasionally lift up to one hundred pounds; in
an eight-hour workday Plaintiff could sit for eight hours, stand

14

for four hours, and walk for four hours without interruption;
totals in an eight-hour day were sit for eight hours and stand and
walk for six hours; Plaintiff’s use of his hands was limited only
to the extent he could frequently (rather than continuously) use
his right and left hand for fingering; and Plaintiff could
continuously operate foot controls; Plaintiff could never climb
ladders or scaffolds and could frequently climb stairs and ramps,
balance, stoop, kneel, crouch, and crawl.

(R. 289-92.)

In the

“Environmental Limitations” category, Dr. McLaughlin opined that
Plaintiff should never be exposed to unprotected heights or operate
a motor vehicle, he can occasionally be exposed to dust, odors,
fumes and pulmonary irritants, and he can frequently be around
moving mechanical parts, and be exposed to humidity and wetness,
extreme cold, extreme heat, and vibrations.

(R. 293.)

Dr. Schneider completed a Medical Source Statement of Ability
to Do Work Related Activities (Mental) on November 13, 2013–-the
date of his evaluation of Plaintiff.

(R. 303-05.)

He opined that

Plaintiff’s ability to understand, remember, and carry out
instructions was limited by his mental impairment to the extent he
had moderate restrictions in his abilities to understand and
remember complex instructions, carry out complex instructions, and
make judgments on complex work-related decisions.

(R. 303.)

Plaintiff had no limitations related to simple instructions and
decisions.

(Id.)

Dr. Schneider concluded that Plaintiff’s ability

15

to interact appropriately with supervisors, co-workers, and the
public, as well as respond to changes in the routine work setting
was affected by his impairment in that he had a marked restriction
in his ability to interact appropriately with supervisors.
304.)

(R.

Dr. Schneider found no problems in the areas of interacting

appropriately with the public and with coworkers; he did not check
any box in the category of “responding appropriately to usual work
situations and to changes in a routine setting” though he noted in
the comment section that Plaintiff “does not handle change well.
[‘]I get fearful of change unless it’s my idea.[’]”
In the December 2, 2013, Disability Determination Explanation,
Thomas Fink, Ph.D., indicated that he reviewed records including
the opinions of Dr. McLaughlin and Dr. Schneider.

(R. 51-54.)

He

concluded that Plaintiff had the medically determinable impairments
of epilepsy, affective disorders, and personality disorders.
55.)

(R.

Under the “A” criteria of the listings–-12.04 for Affective

Disorders and 12.08 for Personality Disorders–-he found the
impairments did not precisely satisfy the diagnostic criteria.
(Id.)

Under the “B” criteria of the listings, Dr. Fink opined that

Plaintiff had mild restriction of activities of daily living,
moderate difficulties in maintaining social functioning and
maintaining concentration, persistence or pace, and he had no
repeated episodes of decompensation.

(Id.)

Dr. Fink also

concluded that the evidence did not establish the “C” criteria of

16

the listings.

(Id.)

He opined that Plaintiff’s report of the

limiting effects of his symptoms were partially credible based on
his consideration of Plaintiff’s activities of daily living,
medication treatment, and treatment other than medication.
56.)

(R.

In his Residual Functional Capacity assessment, Dr. Fink

opined that Plaintiff’s only physical limitation was an
environmental limitation--he should avoid concentrated exposure to
hazards such as machinery and heights.

(R. 57.)

In his mental

RFC, Dr. Fink opined that Plaintiff was moderately limited in his
abilities to carry out detailed instructions, maintain
concentration for extended periods, and interact appropriately with
the general public.

(R. 58-59.)

Dr. Fink noted that Plaintiff was

not involved in mental health treatment at the time.

(R. 59.)

He

concluded that Plaintiff was able to meet the basic demands of
simple routine work on a sustained basis despite the limitations
resulting from his impairment.
3.

(Id.)

Hearing Testimony
Plaintiff, represented by Attorney Steven Serra, testified at

the hearing held on May 8, 2014, before ALJ Daniel Myers.

(R. 11-

49.)

Vocational Expert (“VE”) Michael Kibler also testified.

11.)

It was at this hearing that Plaintiff’s attorney amended

Plaintiff’s onset date to January 1, 2013.

(R.

(R. 15.)

Plaintiff was fifty-one years old at the time of the hearing.
(R. 16.)

He testified that he had problems with his short term

17

memory which affected his ability to work in the customer service
field where he had previously been employed.

(R. 18.)

When asked

by the ALJ what prevented him from working an unskilled job for
forty hours a week, eight hours a day, Plaintiff responded that the
biggest obstacle would be that the medications he was taking for
depression and epilepsy made him extremely tired and lethargic.
(R. 19.)
The ALJ also asked Plaintiff if he had a problem with
supervisors, and Plaintiff responded that occasionally he did.
42.)

(R.

He explained that he compared his more recent jobs with his

Highmark position and had a problem because what more recent
employers called customer service was more like being a telephone
operator: rather than resolving issues as he had done at Highmark,
he was just supposed to get the caller off the phone whether he
resolved the issue or not.

(Id.)

Plaintiff said he complained to

his supervisors about this but they just said Highmark expected too
much.

(R. 42-43.)

Regarding mental health treatment, Plaintiff stated that he
had just restarted at Riverside Associates and had gone there
previously, the last time being in 2010.

(R. 19.)

He also

clarified that he had just started taking medication for his
depression in March 2014 and had taken medication during his stay
at Friends Hospital in 2012.

(R. 20.)

When questioned about why

he stopped taking medication in 2012, Plaintiff responded that he

18

could not afford it.

(Id.)

Plaintiff testified that he last had a seizure on January 24,
2014, when he awoke from sleep at 3:00 a.m. realizing he had just
had a grand mal seizure.

(R. 21.)

grand mal seizure in over a year.

At that time he had not had a
(Id.)

He further testified that

his recovery period for this type of seizure was twenty-four hours
during which he was unable to do anything other than sleep.
22.)

(R.

He also testified that he sleeps for about twelve hours after

this type of seizure.

(Id.)

Plaintiff said that since the start

of the year he had petit mal seizures about once every month and a
half and they always occurred at night, adding that he had no
seizures in 2013.

(R. 30-31.)

When asked about his ability to function at home alone,
Plaintiff testified that he has a hard time focusing on chores such
as vacuuming, dusting, cleaning the kitchen, doing dishes, and
preparing dinner in that he starts one project and goes to another
before completing the first.

(R. 23.)

Plaintiff also said that he

does grocery shopping, either alone or with his partner and when he
goes alone he walks to local stores.

(R. 23-24.)

He reported that

he does the laundry with his partner at a laundromat.

(R. 24.)

also testified that he takes naps during the day, usually about

He

11:00 in the morning for two to three hours.

(R. 28.)

Regarding

sleeping at night, Plaintiff said he goes to sleep at night but
wakes up more tired in the morning either because of sleep apnea,

19

the medications he’s taking, or his depression.

(R. 28.)

Plaintiff said his depression related symptoms included one or
two days a week where he does not get out of bed and three to five
days a week where he does not leave the house because he sees no
purpose in doing so.

(R. 29.)

He also said he has a very low

energy level and has suicidal thoughts two to three times a month.
(Id.)

Plaintiff stated that people in his life told him his mental

status was improving and he was glad he went back to therapy but he
didn’t feel happy or depressed, he just felt empty.

(R. 29-30.)

He had this feeling for about three weeks–-since taking the
medication-–and overall assessed the medications to be helping
somewhat.

(R. 30.)

Plaintiff explained that after nine years employment he was
terminated from his position in customer service at Highmark
because of low production statistics–-after his March 2007 right
frontal lobectomy he found that he could not keep up the pace when
he went back to work.

(R. 26.)

Regarding carpal tunnel syndrome, Plaintiff first testified
that it affected his fingers, hands, and knees.

(R. 32.)

Upon

further questioning, Plaintiff clarified that it was just his hands
and fingers which resulted in difficulty handling and grasping
things, opening jars.

(Id.)

Plaintiff said he had difficulty walking up and down stairs
because of knee problems and his knees lock up about two or three

20

times a month and occasionally he falls because of it.

(R. 32-33.)

He reported he had fallen three weeks earlier when he was in
physical therapy.

(R. 33.)

When the ALJ asked more about this,

Plaintiff stated that he had gone to physical therapy for four
weeks at the direction of his podiatrist, Dr. Grossman, and his
primary care physician at Klein Health Center, Dr. Cheriyath, had
made the referral.2

(Id.)

Plaintiff identified the problem with

his foot as plantar fasciitis which causes pain in the arch of his
foot which affects his daily activities at times (estimated to be
“[a] couple times a day” because he is unable to walk).
35.)

(R. 34-

Plaintiff’s attorney asked him how far he could walk before

either his knees or his foot caused him to stop and rest, and
Plaintiff responded “[u]sually a couple of feet.”
Plaintiff said he was unable to walk a city block.

(R. 35.)
(R. 35.)

When his attorney asked if he had problems sitting, Plaintiff
said that he did because the plantar fasciitis is the worst if he
sits too long or if he is asleep in that the muscles tense up and
he is then unable to walk.

(R. 35-36.)

Plaintiff added that this

occurs after he sits for fifteen to twenty minutes and he addresses
it by getting up and stretching for ten to fifteen minutes.

(R.

36.)

2

The ALJ then asked why there were no records from Klein or
Dr. Grossman and Plaintiff’s attorney said they had recently been
requested and had not been received but he did not know why they
had not been requested sooner. (R. 33-34.) It does not appear
that records from these providers are part of the record.
21

Plaintiff said he likes to read, garden, play with his cat and
watch television.

(R. 37.)

Plaintiff stated that he has friends,

one of whom is a neighbor who comes for coffee in the morning and
then wants to go out and likes company so he goes with her.

(Id.)

He also said that he goes out with his partner and friends,
including to music and art festivals.

(R. 38.)

Plaintiff

testified that he is on the computer daily and pays the bills at
the direction of his partner.

(R. 39-40.)

The Vocational Expert then testified, first describing
Plaintiff’s past work and then answering the ALJ’s hypothetical
questions.

(R. 41.)

In response to a hypothetical question which

limited the individual to only occasional interactions with members
of the public, coworkers and supervisors, the VE responded that
such an individual could not work in any of the jobs Plaintiff had
performed in the past.

(R. 43.)

He further testified that the

person could perform other jobs in the economy.

(Id.)

In one

hypothetical, the ALJ explained the individual as follows:
This hypothetical individual is limited to
occupations in the light category; must avoid
hazards, such as unprotected heights and nonstationary machinery that moves about on the
jobsite floor, such as forklifts; no motor
vehicles. Can understand, remember, carry
out simple instructions of up to three-step
commands exercising only simple judgments;
only occasional changes to the routine work
setting; only occasional interactions with
members of the public, coworkers, and with
supervisors.
(R. 45.)

The VE stated that the jobs of bakery racker and bindery22

machine feeder-off bearer would be available to such an individual.
(R. 44, 45.)

When the ALJ added that the individual described

above was also limited to occasional handling, fingering, and
feeling, and occasional bending, stooping, kneeling, crouching,
crawling, and stairs, the VE said such an individual could, by way
of example, perform the job of bakery line worker.

(R. 45-46.)

The ALJ asked the VE if there was any conflict between the
information the VE provided and the DOT and the VE responded that
there was not.

(R. 47.)

Plaintiff’s attorney then asked whether the individual would
be able to perform these jobs if he would be off task more than
fifteen percent of the workday.
not.

(R. 47.)

(R. 46-47.)

The VE said he would

He also said if the individual was absent more than

two days per month as a result of his impairments on an ongoing
basis he would not be able to sustain any gainful activity.
4.

(Id.)

ALJ Decision
By decision of June 5, 2014, ALJ Myers determined that

Plaintiff was not disabled as defined in the Social Security Act.
(R.79.)

He made the following findings of fact and conclusions of

law:
1.

The claimant last met the insured status
requirements of the Social Security Act
on December 31, 2013.

2.

The claimant did not engage in
substantial gainful activity during the
period from his alleged onset date of
January 1, 2013 through his date last
23

insured of December 31, 2013 (20 CFR
404.1571 et seq.).
3.

Through the date last insured, the
claimant had the following severe
impairments: epilepsy, obstructive sleep
apnea, major depressive disorder, carpal
tunnel syndrome and degenerative joint
disease secondary to osteoarthritis (20
CR 404.1520(c)).

4.

Through the date last insured, the
claimant did not have an impairment or
combination of impairments that met or
medically equaled the severity of one of
the listed impairments in 20 CFR Part
404, Subpart P, Appendix 1 (20 CFR
404.1520(d), 404.1525 and 404.1526).

5.

After careful consideration of the
entire record, the undersigned finds
that, through the date last insured, the
claimant had the residual functional
capacity to perform light work as
defined in 20 CFR 404.1567(b) subject to
the following limitations: must avoid
hazards, such as unprotected heights and
nonstationary machinery moving about on
the job site floor, such as forklifts;
no operation of motor vehicles; can
understand, remember and carry out
simple instructions involving up to 3
step commands; limited to exercising
only simple work-related judgments;
limited to occupations involving only
occasional changes to the routine work
setting; limited to occasional
interactions with members of the public,
coworkers and supervisors; occasional
handling, fingering and feeling; and
occasional bending, stooping, kneeling,
crouching, crawling and climbing stairs.

6.

Through the date last insured, the
claimant was unable to perform any past
relevant work (20 CFR 404.1565).

24

7.

8.

The claimant has at least a high school
education and is able to communicate in
English (20 CFR 404.1564).

9.

Transferability of job skills is not
material to the determination of
disability because using the MedicalVocational Rules as a framework supports
a finding that the claimant is “not
disabled,” whether or not the claimant
has transferable job skills (See SSR 8241 and 20 CFR Part 404, Subpart P,
Appendix 2).

10.

Through the date last insured,
considering the claimant’s age,
education, work experience, and residual
functional capacity, there were jobs
that existed in significant numbers in
the national economy that the claimant
could have performed (20 CFR 404.1569
and 404.1569(a)).

11.

(R. 69-78.)

The claimant was born on October 3, 1962
and was 51 years old, which is defined
as an individual closely approaching
advanced age, on the date last insured
(20 CFR 404.1563).

The claimant was not under a disability,
as defined in the Social Security Act,
at any time from January 1, 2013, the
alleged onset date, through December 31,
2013, the date last insured (20 CFR
404.1520(g)).

The ALJ reviewed the impairments noted in the record

and explained how he determined that Plaintiff had the severe
impairments noted above.

(R. 69-71.)

He determined that

Plaintiff’s impairments did not meet or equal the criteria of
listing 12.04 after considering evidence of record regarding
Plaintiff’s limitations in the context the “paragraph B” and

25

“paragraph C” requirements.

(R. 70-71.)

In explaining Plaintiff’s RFC, the ALJ reviewed the objective
and opinion evidence and set out his rationale for the weight given
to Plaintiff’s subjective complaints and opinions contained in the
record.

(R. 72-77.)

The ALJ gave great weight to the opinions of examining source
Dr. McLaughlin because he found that his opinions were
substantiated by clinical evidence and the conservative level of
treatment Plaintiff received.

(R. 76.)

He gave limited weight to

Dr. Schneider’s opinions because he concluded they appeared to be
based primarily on Plaintiff’s subjective reporting.

(R. 76.)

The ALJ found Plaintiff not entirely credible, reviewing his
reasons for doing so in detail and considering evidence related to
each of Plaintiff’s claimed impairments.

(R. 72-76.)

Consistent with the testimony of the VE, the ALJ found
Plaintiff could not perform his past relevant work.

(R. 77.)

With

the assistance of the VE, the ALJ concluded that Plaintiff was able
to perform other jobs which exist in the national economy.

(R 77-

78.)
II. Disability Determination Process
The Commissioner is required to use a five-step analysis to
determine whether a claimant is disabled.3

3

It is necessary for the

“Disability” is defined as the “inability to engage in any
substantial gainful activity by reason of any medically
determinable physical or mental impairment which can be expected to
26

Commissioner to ascertain: 1) whether the applicant is engaged in a
substantial activity; 2) whether the applicant is severely
impaired; 3) whether the impairment matches or is equal to the
requirements of one of the listed impairments, whereby he qualifies
for benefits without further inquiry; 4) whether the claimant can
perform his past work; 5) whether the claimant’s impairment
together with his age, education, and past work experiences
preclude him from doing any other sort of work.

20 C.F.R. §§

404.1520(b)-(g), 416.920(b)-(g); see Sullivan v. Zebley, 493 U.S.
521, 110 S. Ct. 885, 888-89 (1990).
If the impairments do not meet or equal a listed impairment,
the ALJ makes a finding about the claimant’s residual functional
capacity based on all the relevant medical evidence and other
evidence in the case record.

20 C.F.R. § 404.1520(e); 416.920(e).

result in death or which has lasted or can be expected to last for
a continuous period of not less that 12 months . . . .” 42 U.S.C.
§ 423(d)(1)(A). The Act further provides that an individual is
disabled
only if his physical or mental impairment or
impairments are of such severity that he is not
only unable to do his previous work but cannot,
considering his age, education, and work
experience, engage in any other kind of
substantial gainful work which exists in the
national economy, regardless of whether such
work exists in the immediate area in which he
lives, or whether a specific job vacancy exists
for him, or whether he would be hired if he
applied for work.
42 U.S.C. § 423(d)(2)(A).
27

The residual functional capacity assessment is then used at the
fourth and fifth steps of the evaluation process.

Id.

The disability determination involves shifting burdens of
proof.

The initial burden rests with the claimant to demonstrate

that he or she is unable to engage in his or her past relevant
work.

If the claimant satisfies this burden, then the Commissioner

must show that jobs exist in the national economy that a person
with the claimant’s abilities, age, education, and work experience
can perform.

Mason v. Shalala, 993 F.2d 1058, 1064 (3d Cir. 1993).

As set out above, the instant decision was decided at the
fifth step of the process when the ALJ found that Plaintiff was
capable of performing work that existed in significant numbers in
the national economy.

(R. 77.)
III. Standard of Review

This Court’s review of the Commissioner’s final decision is
limited to determining whether there is substantial evidence to
support the Commissioner’s decision.

42 U.S.C. § 405(g); Hartranft

v. Apfel, 181 F.3d 358, 360 (3d Cir. 1999).
means “more than a mere scintilla.

Substantial evidence

It means such relevant evidence

as a reasonable mind might accept as adequate to support a
conclusion.”

Richardson v. Perales, 402 U.S. 389, 401 (1971); see

also Cotter v. Harris, 642 F.2d 700, 704 (3d Cir. 1981).

The Third

Circuit Court of Appeals further explained this standard in Kent v.
Schweiker, 710 F.2d 110 (3d Cir. 1983).
28

This oft-cited language is not . . . a
talismanic or self-executing formula for
adjudication; rather, our decisions make
clear that determination of the existence vel
non of substantial evidence is not merely a
quantitative exercise. A single piece of
evidence will not satisfy the substantiality
test if the Secretary ignores, or fails to
resolve, a conflict created by countervailing
evidence. Nor is evidence substantial if it
is overwhelmed by other evidence–particularly certain types of evidence (e.g.,
that offered by treating physicians)–-or if
it really constitutes not evidence but mere
conclusion. See [Cotter, 642 F.2d] at 706
(“‘Substantial evidence’ can only be
considered as supporting evidence in
relationship to all the other evidence in the
record.”) (footnote omitted). The search for
substantial evidence is thus a qualitative
exercise without which our review of social
security disability cases ceases to be merely
deferential and becomes instead a sham.
710 F.2d at 114.
This guidance makes clear it is necessary for the Secretary to
analyze all evidence.

If she has not done so and has not

sufficiently explained the weight given to all probative exhibits,
“to say that [the] decision is supported by substantial evidence
approaches an abdication of the court’s duty to scrutinize the
record as a whole to determine whether the conclusions reached are
rational.”
1979).

Dobrowolsky v. Califano, 606 F.2d 403, 406 (3d Cir.

In Cotter, the Circuit Court clarified that the ALJ must

not only state the evidence considered which supports the result
but also indicate what evidence was rejected: “Since it is apparent
that the ALJ cannot reject evidence for no reason or the wrong

29

reason, an explanation from the ALJ of the reason why probative
evidence has been rejected is required so that a reviewing court
can determine whether the reasons for rejection were improper.”
Cotter, 642 F.2d at 706-07.

However, the ALJ need not undertake an

exhaustive discussion of all the evidence.
Apfel, 204 F.3d 78, 83 (3d Cir. 2000).

See, e.g., Knepp v.

“There is no requirement

that the ALJ discuss in its opinion every tidbit of evidence
included in the record.”
Cir. 2004).

Hur v. Barnhart, 94 F. App’x 130, 133 (3d

“[W]here [a reviewing court] can determine that there

is substantial evidence supporting the Commissioner’s decision, . .
.

the Cotter doctrine is not implicated.”

Hernandez v.

Commissioner of Social Security, 89 Fed. Appx. 771, 774 (3d Cir.
2004) (not precedential).
A reviewing court may not set aside the Commissioner’s final
decision if it is supported by substantial evidence, even if the
court would have reached different factual conclusions.

Hartranft,

181 F.3d at 360 (citing Monsour Medical Center v. Heckler, 806 F.2d
1185, 1190-91 (3d Cir. 1986); 42 U.S.C. § 405(g) (“[t]he findings
of the Commissioner of Social Security as to any fact, if supported
by substantial evidence, shall be conclusive . . .”).

“However,

even if the Secretary’s factual findings are supported by
substantial evidence, [a court] may review whether the Secretary,
in making his findings, applied the correct legal standards to the
facts presented.”

Friedberg v. Schweiker, 721 F.2d 445, 447 (3d
30

Cir. 1983) (internal quotation omitted).

Where the ALJ’s decision

is explained in sufficient detail to allow meaningful judicial
review and the decision is supported by substantial evidence, a
claimed error may be deemed harmless.

See, e.g., Albury v.

Commissioner of Social Security, 116 F. App’x 328, 330 (3d Cir.
2004) (not precedential) (citing Burnett v. Commissioner, 220 F.3d
112 (3d Cir. 2000) (“[O]ur primary concern has always been the
ability to conduct meaningful judicial review.”).

An ALJ’s

decision can only be reviewed by a court based on the evidence that
was before the ALJ at the time he or she made his or her decision.
Matthews v. Apfel, 239 F.3d 589, 593 (3d Cir. 2001).

It is the

ALJ’s responsibility to explicitly provide reasons for his decision
and analysis later provided by the defendant cannot make up for
analysis lacking in the ALJ’s decision.

Fargnoli v. Massanari, 247

F.3d 34, 42, 44 n.7 (3d Cir. 2001); Dobrowolsky, 606 F.2d at 40607.

Neither the reviewing court nor the defendant “may create or

adopt post-hoc rationalizations to support the ALJ’s decision that
are not apparent from the ALJ’s decision itself.”

Hague v. Astrue,

482 F.3d 1205, 1207-08 (10th Cir. 2007); see also Motor Vehicle
Mfrs. Ass’n of U.S. v. State Farm Mut. Auto Ins. Co., 463 U.S. 29,
50 (1983) (citations omitted) (“It is well-established that an
agency’s action must be upheld, if at all, on the basis articulated
by the agency itself.”)

31

IV. Discussion
A. General Considerations
At the outset of our review of whether the ALJ has met the
substantial evidence standard regarding the matters at issue here,
we note the Third Circuit has repeatedly emphasized the special
nature of proceedings for disability benefits.
606 F.2d at 406.

See Dobrowolsky,

Social Security proceedings are not strictly

adversarial, but rather the Social Security Administration provides
an applicant with assistance to prove his claim.

Id.

“These

proceedings are extremely important to the claimants, who are in
real need in most instances and who claim not charity but that
which is rightfully due as provided for in Chapter 7, Subchapter
II, of the Social Security Act.”

Hess v. Secretary of Health,

Education and Welfare, 497 F. 2d 837, 840 (3d Cir. 1974).

As such,

the agency must take extra care in developing an administrative
record and in explicitly weighing all evidence.
F.2d at 406.

Dobrowolsky, 606

Further, the court in Dobrowolsky noted “the cases

demonstrate that, consistent with the legislative purpose, courts
have mandated that leniency be shown in establishing the claimant’s
disability, and that the Secretary’s responsibility to rebut it be
strictly construed.”
B.

Id.

Plaintiff’s Alleged Errors
As set out above, Plaintiff asserts the decision of the Social

Security Administration is error for the following reasons: 1) the
32

ALJ erred at step three in determining that Plaintiff’s major
depressive disorder does not meet medical listing 12.04; 2) the
Commissioner erred as a matter of law in failing to provide any
reason for rejecting the opinion of Stanley E. Schneider, Ed.D.; 3)
the Commissioner failed to sustain her burden of establishing there
is other work in the national economy Plaintiff could perform; and
4) the ALJ’s credibility finding is not based on substantial
evidence.
1.

(Doc. 11 at 2.)

Listing 12.04
Plaintiff first asserts that the ALJ erred when he did not

find that Plaintiff’s major depressive disorder met the
requirements of listing 12.04.

(Doc. 11 at 10.)

Defendant argues

that the ALJ appropriately found that Plaintiff’s condition failed
to meet the requirements of Listing 12.04.

(Doc. 12 at 14-20)

We

agree with Defendant.
A claimant bears the burden of establishing that his
impairment meets or equals a listed impairment.

Poulos v. Comm’r

of Social Security, 474 F.3d 88, 92 (3d Cir. 2007).

In general the

required level of severity for an affective disorder may be
established when the criteria for both parts A and B are met or
when the criteria in paragraph C are satisfied.
subpt. P, App. 1 § 12.04.

20 C.F.R. pt. 404,

The part A criteria “are medical

findings that substantiate the presence of the mental disorder.”
Cunningham v. Comm’r of Social Security, 507 F. App’x 111, 116 n.4

33

(3d Cir. 2012) (citing 20 C.F.R. pt. 404, subpt. P, App. 1, §
1200(A)).

To satisfy the “B” criteria of Listing 12.04, the mental

impairments must satisfy at least two of the following: 1) marked
restriction of activities of daily living; 2) marked difficulties
in maintaining social functioning; 3) marked difficulties in
maintaining concentration, persistence, or pace; 4) repeated
episodes of decompensation, each of extended duration.
pt. 404, subpt. P, App. 1 § 12.04(B).

20 C.F.R.

“A ‘marked’ restriction or

difficulty is one that is more than moderate but less than extreme
and that ‘interfere[s] seriously with [the] ability to function
independently, appropriately, effectively, and on a sustained
basis.’”

Cunningham, 507 F. App’x at 116 (citing 20 C.F.R. pt.

404, subpt. P, App. 1, § 12.00(C)).

Paragraph C of listing 12.04

requires demonstration of one of the following: 1) repeated and
extended episodes of decompensation; 2) a residual disease process
that has resulted in such marginal adjustment that even a minimal
increase in mental demands or change in the environment would be
predicted to cause the individual to decompensate; or 3) current
history of one or more years’ inability to function outside a
highly supportive living arrangement, with an indication of a
continued need for such an arrangement.

20 C.F.R. pt. 404, subpt.

P, App. 1 § 12.04(C).
The ALJ considered both the B and C criteria.

(R. 70-71.)

Under paragraph B, he reviewed all requirements and found that

34

Plaintiff did not meet any of them.

(Id.)

He found that Plaintiff

had mild restrictions in his activities of daily living–-though he
complained of tiredness and a lack of motivation, he was employed.
(R. 14.)

In social functioning, the ALJ found that Plaintiff had

mild difficulties–-though he complained of sleep disturbance and
intermittent low motivation to perform daily tasks, the ALJ found
the record suggested Plaintiff was able to perform a wide range of
activities of daily

living and there was little evidence that he

is limited due to psychiatric symptoms.

(R. 70.)

The ALJ

concluded Plaintiff had moderate difficulties in social functioning
based in part on relationship issues and difficulty getting along
with authority figures and supervisors but he also spends time with
others, is not prevented from leaving the house because of
depression or anxiety, and there is no evidence of social
withdrawal or antisocial behaviors.

(R. 71.)

The ALJ concluded

Plaintiff had moderate difficulties in concentration, persistence,
or pace–-though the record showed a history of emotional
difficulties, he showed intact attention, concentration and memory
on examination.

(R. 71.)

The ALJ determined that Plaintiff had

experienced no episodes of decompensation.

(Id.)

ALJ Myers also concluded that Plaintiff had failed to
establish the presence of the paragraph C criteria.

(Id.)

He

noted that he found no support in the record for the existence of
any of the criteria.

(Id.)

35

Plaintiff has failed to meet his burden on this issue in that
he catalogs evidence of record but does not show how the evidence
satisfies the specific listing requirements.

(Doc. 11 at 10-13.)

Conclusory assertions are not enough.
Plaintiff argues in his reply brief that he meets the
requirements of paragraph B because he has a marked impairment in
social functioning and a marked impairment in maintaining
concentration, persistence or pace.

(Doc. 15 at 2-3.)

He again

cites anecdotal observations from hospitalization and examining
source records and incidents of self-reporting.

As discussed

above, these references do not show that the ALJ erred at step
three--Plaintiff has not provided evidence which would undermine
the ALJ’s conclusion that Plaintiff’s mental impairment does not
meet the requirements of listing 12.04.
2. Opinion of Stanley E. Schneider, Ed.D.
Plaintiff next claims the Commissioner erred as a matter of
law in failing to provide any reason for rejecting Dr. Schneider’s
opinion.

We disagree.

First, the ALJ did not reject Dr. Schneider’s opinion; rather,
he afforded it “limited weight.”

(R. 76.)

Moreover, the ALJ did

in fact provide a reason for the weight attributed to the opinion:
he determined that it was “based primarily on the claimant’s
subjective reports of his limitations rather than on observation or
clinical evidence.”

(Id.)

Plaintiff points to Dr. Schneider’s

36

observations about underlying anger and irritability but otherwise
cites Plaintiff’s subjectively reported symptoms rather than
objective evidence.

(Doc. 11 at 15.)

The ALJ provided a reason

for discounting certain portions of Dr. Schneider’s opinion and
Plaintiff has not adequately refuted that reason.

We find no basis

to find that the ALJ decision in this matter was error.
3.

Step Five
Plaintiff asserts that the Commissioner failed to sustain her

burden of establishing there is other work in the national economy
Plaintiff could perform because the ALJ did not present all of
Plaintiff’s limitations in the hypothetical posed to the VE.
11 at 17.)

(Doc.

We conclude Plaintiff’s claimed step five errors are

not cause for remand.
Plaintiff points to the ALJ’s finding that Plaintiff had
moderate difficulties in maintaining concentration, persistence and
pace and the ALJ’s failure to specifically mention these
limitations in his hypothetical.

(Id. at 18.)

Plaintiff

acknowledges that the ALJ identified the following specific
limitations in his RFC: “‘can understand, remember and carry out
simple instructions involving up to 3 step commands; limited to
exercising only simple work-related judgments; limited to
occupations involving only occasional changes to the routine work
setting; limited to occasional interactions with members of hte
public, coworkers and supervisors.”

37

(Id. (quoting R. 71-72).)

Plaintiff argues that, pursuant to Ramirez v. Barnhart, 372 F.3d
546, 554 (3d Cir. 2002), the limitations identified by the ALJ do
not account for the concentration, persistence or pace limitations.
(Doc. 11 at 18.)
As noted by Defendant, the ALJ’s step two finding regarding
concentration, persistence or pace is not a residual functional
capacity assessment for steps four and five and the ALJ
specifically notes this in his decision.

(Doc. 12 at 21.)

Defendant also distinguishes Ramirez on the basis that here the ALJ
set out detailed work-related restrictions where Ramirez referred
only to simple, unskilled work.
distinction is significant.

(Id.)

We agree that this

We are not persuaded otherwise by

Plaintiff’s reference in his reply brief to a previously cited
Eastern District case where the court held that a limitation to
“simple repetitive tasks” and “only occasional contact with the
public and coworkers” did not adequately account for moderate
difficulties in concentration, persistence or pace.

(Doc. 15 at 4

(citing Steinberger v. Barnhart, Civ. A. No. 04-5383, 2005 WL
2077375, at *3-4 (E.D. Pa. Apr. 24, 2005)).)

As set out above, the

limitations provided by the ALJ here are more extensive.
Furthermore, Plaintiff does not dispute the proposition for which
Defendant cites Holley v. Commissioner of Soc. Sec., 590 F. App’x
167 (3d Cir. 2014), or otherwise distinguish his case.

(See Doc.

12 at 22 (citing Holley for the proposition that the case re38

emphasized “that when a claimant produces evidence that is
generally very thin, an insistence that the ALJ, who demonstrated a
‘sound knowledge of the record,’ should have included a specific
limitation for concentration, persistence or pace is ‘not
persuasive’”).)

We find this to be the type of case identified in

Holley based on our independent review of the record, including
Plaintiff’s attorney’s own acknowledgment that “the medical records
are somewhat sparse in this matter” (R. 15).
In his reply brief, Plaintiff also points to his testimony
about carpal tunnel syndrome as it relates to the ALJ’s step five
determination.

(Doc. 15 at 5.)

The ALJ limited Plaintiff to

occasional handling, fingering and feeling to account for
Plaintiff’s alleged difficulty.

(R. 72, 74-75.)

Plaintiff sets

out the Dictionary of Occupational Titles (“DOT”) # 524.687-022
list of functions for the conveyor line bakery worker position and
asserts that it requires more use of the hands than he is capable
of.

(Doc. 15 at 5.)
“Performs any combination of following tasks
in preparation of cakes along conveyer line:
Reads production schedule or receives
instructions regarding bakery products that
require filling and icing. Inspects cakes
moving along conveyer to detect defects and
removes defective cakes from conveyer to
reject bins. Positions cakes on conveyer for
application of filling or icing by machine,
observes filling or icing application to
ensure uniform coverage, and places
additional cake layers, depending on number
of cake layers in product. Observes cakes
moving under automatic shaker and cake
39

cutting machine to ensure uniform topping
application and cutting. Smooths iced edges
of cake, using spatula, and moves decorating
tool over top of designated cakes to apply
specified appearance. Notifies supervisor of
malfunctions.”
(Doc. 11 at 22 (quoting DOT #524.687-022).)
This list of functions shows that a bakery line worker would
not be required to “constantly use both hands” as Plaintiff
claims.

(Doc. 15 at 6.)

The ALJ specifically asked the VE if

there was any conflict between the information the VE provided and
the DOT and the VE responded that there was not.

(R. 47.)

Because the ALJ asked about whether there was a conflict (as
required by Burns v. Barnhart, 312 F.3d 113, 127 (3d Cir. 2002))
and Plaintiff’s counsel did not question consistency or otherwise
object to the VE’s identification of the bakery line worker
position, we do not find that this claimed error is cause for
remand.
4.

Plaintiff’s Credibility
Finally, Plaintiff asserts that the ALJ’s credibility finding

is not based on substantial evidence.

(Doc. 11 at 20.)

points to five reasons the ALJ’s determination is error.

Plaintiff
We do

not find error in any one of the identified bases.
First, Plaintiff faults the ALJ’s reference to the
conservative treatment of Plaintiff’s psychiatric impairments.
(Doc. 11 at 21 (citing R. 75).)

He argues that “an ALJ cannot

override treating specialists who provide treatment consisting of
40

therapy and medication.”

(Doc. 11 at 21 (citing Morales v. Apfel,

225 F. 3d 310, 319 (2000)).)

Plaintiff does not identify a

treating specialist who was overrided by the ALJ.

The records

show that Plaintiff did not have a long term treating specialist
for his psychiatric impairment (or in any other context).

If he

is referring to his treatment at Riverside Associates from January
14 through April 29, 2014, the licensed clinical social worker who
was involved with Plaintiff, Hilary Spease, did not conclude that
Plaintiff’s mental health condition prevented him from working or
otherwise conflict with the ALJ’s findings.
24.)

(See R. 316-319, 422-

As set out above, she suggested Plaintiff talk with his

neurologist about his reported memory problems and either apply
for disability or apply for a job depending on that assessment.
(See, e.g., R. 323.)

Plaintiff’s neurologist at the time was

Jayant Acharya, M.D., and he found that Plaintiff’s immediate
recall as well as recent and remote memory were normal.
45.)

(R. 344-

Therefore, even if we were to consider Ms. Spease

Plaintiff’s treating specialist for his mental impairments, the
conflict to which Plaintiff may be referring is nonexistent.
Second, Plaintiff criticizes the ALJ’s reference to the fact
that Plaintiff did not start taking psychiatric medications until
March 2014 on the basis that he could not afford the medications
when they were prescribed in 2012.
does not expand upon this argument.

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(Doc. 11 at 21.)

Plaintiff

It is just one of the many

reasons the ALJ found Plaintiff’s testimony regarding his mental
impairments not fully credible.

(R. 75-76.)

The ALJ carefully

analyzed this issue and, although Plaintiff testified that he did
not take medication because of cost, he does not explain his
failure to seek any sort of treatment or attempt to procure
medication in the almost two years between his discharge from
Friends Hospital in February 2012 and the beginning of counseling
at Riverside in January 2014.

Therefore, we conclude Plaintiff

has not shown merit in his second basis for asserting the ALJ’s
credibility determination is error.
Third, Plaintiff points to the ALJ’s notation regarding his
testimony that his medications cause lethargy and tiredness.
(Doc. 11 at 21 (citing R. 73).)

He states that the ALJ failed to

incorporate this in his RFC assessment.
Plaintiff does not expand this argument.
discuss it further on this basis.

(Doc. 11 at 21.)
(Id.)

We need not

However, we also note that

Holley’s guidance regarding thin evidence and RFC limitations
discussed above may apply in this context as well.

590 F. App’x

167.
Plaintiff’s fourth cited credibility error relates to his
testimony about his carpal tunnel syndrome and the bakery line
job.

We addressed this claimed error above.

(Doc. 11 at 21.)

Fifth, Plaintiff asserts it was error for the ALJ not to take
note that GAF ratings continue to be opinion evidence that should

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be considered pursuant to Social Security Administrative Message
13066.

(Doc. 11 at 23.)

Plaintiff cites no authority for the

proposition that an ALJ must take note of the changing relevance
of GAF scores.

More importantly, the ALJ stated why he afforded

GAF scores very little weight, including the fact that some scores
reflect Plaintiff’s functioning prior to his onset date and during
periods of exacerbation.

(R. 76-77.)

We find no error in this

assessment.
In sum, the ALJ’s credibility determination is not error for
any of the specific reasons advanced by Plaintiff.

The ALJ

carefully reviewed the evidence of record and identified the
reasons for his findings.

(R. 72-77.)
V. Conclusion

For the reasons discussed above, we find no basis for remand
in the errors claimed by Plaintiff.

Therefore, Plaintiff’s appeal

of the Acting Commissioner’s denial of benefits (Doc. 1) is
denied.

An appropriate Order is filed simultaneously with this

Memorandum.

S/Richard P. Conaboy
RICHARD P. CONABOY
United States District Judge
_
DATED: July 27, 2015

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